Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Pygmy Three-Toed Sloth, 20928-20939 [2024-05724]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Proposed Rules]
[Pages 20928-20939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05724]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2023-0151; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG53


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Pygmy Three-Toed Sloth

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the pygmy three-toed sloth (Bradypus pygmaeus; hereafter ``pygmy 
sloth''), an arboreal mammal species from Panama, as a threatened 
species under the Endangered Species Act of 1973, as amended (Act). 
This determination also serves as our 12-month finding on a petition to 
list the pygmy sloth. After a review of the best available scientific 
and commercial information, we find that listing the species is 
warranted. Accordingly, we propose to list the pygmy sloth as a 
threatened species with a rule issued under section 4(d) of the Act 
(``4(d) rule''). If we finalize this rule as proposed, it will add this 
species to the List of Endangered and Threatened Wildlife and extend 
the Act's protections to the species.

DATES: We will accept comments received or postmarked on or before May 
28, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by May 10, 2024.

ADDRESSES: 
    Written comments: You may submit comments by one of the following 
methods:

[[Page 20929]]

    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2023-0151, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-ES-2023-0151, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-HQ-ES-2023-0151.

FOR FURTHER INFORMATION CONTACT: Rachel London, Manager, Branch of 
Delisting and Foreign Species, Ecological Services Program, U.S. Fish 
and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA 
22041-3803; telephone 703-358-2171. Individuals in the United States 
who are deaf, deafblind, hard of hearing, or have a speech disability 
may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications 
relay services. Individuals outside the United States should use the 
relay services offered within their country to make international calls 
to the point-of-contact in the United States. Please see Docket No. 
FWS-HQ-ES-2023-0151 on https://www.regulations.gov for a document that 
summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may be affecting the continued existence of the 
species, which may include habitat destruction, modification, or 
curtailment; overutilization; disease; predation; the inadequacy of 
existing regulatory mechanisms, or other natural or manmade factors;
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species; and
    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Information on regulations that may be necessary and advisable 
to provide for the conservation of the pygmy sloth and that we can 
consider in developing a 4(d) rule for the species. In particular, we 
seek information concerning the extent to which we should include any 
of the section 9 prohibitions in the 4(d) rule or whether we should 
consider any additional exceptions from the prohibitions in the 4(d) 
rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to 
whether any species is an endangered or a threatened species must be 
made solely on the basis of the best scientific and commercial data 
available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), we may conclude that the species is endangered 
instead of threatened, or we may conclude that the species does not 
warrant listing as either an endangered species or a threatened 
species. In addition, we may change the parameters of the prohibitions 
or the exceptions to those prohibitions in the 4(d) rule if we conclude 
it is appropriate considering comments and new information received. 
For example, we may expand the prohibitions to include prohibiting 
additional activities if we conclude that those additional activities 
are not compatible with conservation of the species. Conversely, we may 
establish additional exceptions to the prohibitions in the final rule 
if we conclude that the activities would facilitate or are compatible 
with the conservation and recovery of the species. In our final rule, 
we will clearly explain our rationale and the basis for our final 
decision, including why we made changes, if any, that differ from this 
proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register at least 15 days before

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the hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On November 15, 2013, we received a petition from the Animal 
Welfare Institute to add the pygmy sloth to the List of Endangered and 
Threatened Wildlife. On June 9, 2014, we published in the Federal 
Register (79 FR 32900) a 90-day finding that the petition presented 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted; that document initiated a status 
review for the pygmy sloth.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the pygmy sloth. The SSA team was composed of Service biologists, in 
consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the pygmy sloth SSA report. We 
sent the SSA report to five independent peer reviewers and received 
three responses. Results of this structured peer review process can be 
found at https://www.regulations.gov at Docket No. FWS-HQ-ES-2023-0151. 
In preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report, which is the foundation 
for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed above in Peer Review, we received comments from three 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and conclusions, 
and provided additional information, clarifications, and suggestions, 
including clarifications on terminology, additional literature on 
phylogeny and diet, information on generation time, clarifications on 
published correspondence, updates regarding the ongoing conservation 
efforts for the pygmy sloth, clarification on the pygmy sloth's 
inclusion in Appendix II of the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES) (27 U.S.T. 1087), 
and other editorial suggestions. No substantive changes to our analysis 
and conclusions within the SSA report were deemed necessary, and peer 
reviewer comments are addressed in version 1.1 of the SSA report 
(Service 2023, entire).

I. Proposed Listing Determination

Background

    The pygmy sloth, the smallest of the of four extant species of 
three-toed sloths, is a tan-colored arboreal mammal species with a 
near-white face and black stripes over the eyes. Adults weigh 
approximately 3 kilograms (kg) (6.6 pounds (lb)) and measure about 500 
millimeters (mm) (1.6 feet (ft)) in length. The species is most closely 
related to the brown-throated three-toed sloth (B. variegatus; 
hereafter ``brown-throated sloth''; Ruiz-Garcia et al. 2020, pp. 468-
470; Anderson and Handley 2001, pp. 9-15). The pygmy sloth was 
originally separated taxonomically from the more widespread brown-
throated sloth (native to central America including mainland Panama and 
northern South America) based on its consistently smaller size and 
distinct skeletal structures (Anderson and Handley 2001, pp. 9-18). 
Having only been described as a full species in 2001, there is little 
detail available on the species' life history and habitat requirements.
    Pygmy sloths are found only on the small Panamanian island Isla 
Escudo de Veraguas (hereafter, ``Escudo''), which is 4.3 square 
kilometers (km\2\) (1.7 square miles (mi\2\)) in area and lies about 18 
kilometers (km) (11.2 miles (mi)) from the Panamanian mainland 
(Anderson and Handley 2001, p. 5). About 2.5 percent of the island is 
composed of red mangrove (Rhizophora mangle) thickets scattered along 
the north coast, and the remainder of the island is a mixed species 
tropical forest (Kaviar et al. 2012, pp. 1-3; Voirin 2015, p. 705; 
Zoological Society of London (ZSL) 2017, p. 11). It is uncertain 
whether sloths on Escudo are reliant on the mangroves or whether some 
live entirely within the interior forest (Voirin 2015, p. 705). All 
three-toed sloths are arboreal folivores; they consume leaves with 
relatively low nutritional quality, necessitating physiological and 
behavioral adaptations including limited movements and low muscle mass 
(Anderson and Handley 2001, p. 2). Pygmy sloths have been observed 
using at least 15 plant species (including mangroves) for food and 
refuge, but it is not known which, if any, plant species they require 
(Smith et al. 2021, unpaginated; Smith 2022, pers. comm.; Superina 
2022, pers. comm.).
    Few data exist specific to pygmy sloth reproduction and population 
biology. Based on demographic data for three-toed sloths, it is 
reasonable to conclude that an average generation time (or time between 
birth of an individual and birth of its offspring) is approximately 6 
to 10 years for pygmy sloths (Anderson and Handley 2002, p. 1051; Taube 
et al. 2001, p. 184; Superina 2022, pers. comm.). Other three-toed 
sloth species have only one offspring per pregnancy after gestation of 
100-180 days (Benirschke 2008, p. 168; Taube 2001, p. 184). Longevity 
and survivorship are little-known for three-toed sloths. Both genetic 
data, although limited, and documentation of sloth movement into the 
interior forest suggest that there is only a single population of the 
species (ZSL 2017, p. 9; Voirin 2015, p. 705; Silva 2013, p. 138).
    A thorough review of the taxonomy, life history, and ecology of the 
pygmy sloth is presented in the SSA report (version 1.1; Service 2023, 
pp. 1-8).

Regulatory and Analytical Framework

Regulatory Framework
    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, we issued a final rule that revised 50 CFR 17.31 and 17.71 
(84 FR 44753; hereinafter, ``the 2019 4(d) rule'') and ended the 
``blanket rule'' option for application of section 9 prohibitions to 
species newly listed as threatened after the effective date of those 
regulatory revisions (September 26, 2019). Blanket rules had extended 
the majority of the protections (all of the prohibitions that apply to 
endangered species under

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section 9 and additional exceptions to the prohibitions) to threatened 
species, unless we issued an alternative rule under section 4(d) of the 
Act for a particular species (i.e., a species-specific 4(d) rule). The 
blanket rule protections continued to apply to threatened species that 
were listed prior to September 26, 2019, without an associated species-
specific rule. Under the 2019 4(d) rule, the only way to apply 
protections to a species newly listed as threatened is for us to issue 
a species-specific rule setting out the protective regulations that are 
appropriate for that species.
    Our analysis for this decision applied the regulations that are 
currently in effect, which include the 2019 revisions. However, we 
proposed further revisions to these regulations on June 22, 2023 (88 FR 
40742; 88 FR 40764). In case those revisions are finalized before we 
make a final status determination for this species, we have also 
undertaken an analysis of whether the decision would be different if we 
were to apply those proposed revisions. We concluded that the decision 
would have been the same if we had applied the proposed 2023 
regulations. The analyses under both the regulations currently in 
effect and the regulations after incorporating the June 22, 2023, 
proposed revisions are included in our decision file.
    The Act (16 U.S.C. 1531 et seq.) defines an ``endangered species'' 
as a species that is in danger of extinction throughout all or a 
significant portion of its range, and a ``threatened species'' as a 
species that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The Act requires that we determine whether any species is an 
endangered species or a threatened species because of any of the 
following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    We considered the threats of habitat loss and degradation and 
tourism and development, along with demographic factors of pygmy 
sloths, and determined the foreseeable future to be approximately 30 
years. This timeline for the foreseeable future is based on several 
factors. The pygmy sloth generation time is estimated to be between 6 
and 10 years, and similar species only have one offspring per 
pregnancy. Thus, the demographic responses of the species to the 
identified threats will materialize rapidly across just a few (<5) 
generations. This determination of foreseeable future being 30 years 
assumes enough time will pass for three to five generations of cohorts 
to represent the population's resiliency to the identified threats. 
Thirty years will also include time for climate change and development 
to progress, as well as for conservation activities affecting Escudo to 
develop. We are very confident in the predictions from our climate 
models out to this time step. Although there is uncertainty in specific 
rates and strengths of the impacts from development and tourism over 
this time step, we are confident in the negative effects these threats 
will have on pygmy sloth. We have information showing that nearby 
coastal development plans are in place, roads providing access to the 
coastlines are being built, and conservation capacity within the area 
is limited. This information combined with demographics of this species 
gives us confidence that within a 30-year future, these threats will 
negatively impact the pygmy sloth. Therefore, based on the best 
scientific and commercial data available, we conclude that over a 
period of 30 years we can make reliable predictions that both the 
future threats to the species and the species' response to those 
threats are likely.
Analytical Framework
    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed

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for listing as an endangered or threatened species under the Act. 
However, it does provide the scientific basis that informs our 
regulatory decisions, which involve the further application of 
standards within the Act and its implementing regulations and policies.
    To assess pygmy sloth viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm or cold years); redundancy 
is the ability of the species to withstand catastrophic events (for 
example, droughts, large pollution events); and representation is the 
ability of the species to adapt to both near-term and long-term changes 
in its physical and biological environment (for example, climate 
conditions, pathogens). In general, species viability will increase 
with increases in (or decrease with decreases in) resiliency, 
redundancy, and representation (Smith et al. 2018, p. 306). Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time, which we then used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket FWS-HQ-ES-
2023-0151 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.
    Based on the species' biology described above and in the SSA report 
(version 1.1; Service 2023, pp. 1-8), the pygmy sloth requires food 
plants, intact and connected forest habitats, and sufficient 
conspecific individuals to find a mate. Threats to the sloth's 
viability include the small extent (4.3 km\2\) of Escudo (as noted 
above, pygmy sloths in the wild are found only on this one small island 
in Panama), the naturally limited size of the species' single 
population, direct and indirect impacts of tourism, habitat loss from 
small-scale timber harvest, and habitat loss from sea-level rise and 
erosion. Together, these threats make the pygmy sloth vulnerable to 
random declines due to demographic stochasticity, environmental 
catastrophes (e.g., storms), or both.
Threats
    Small-scale but continuing harvest of red mangroves and interior 
forest trees occurs on Escudo for construction of temporary huts used 
by fishermen and for timber for tourism development in nearby regions 
(Feller 2022, pers. comm.; ZSL 2017, p. 16). Continued forest loss 
would eventually lead to a reduced pygmy sloth population, but the lack 
of good information on pygmy sloth movements and densities, and their 
relative reliance on mangrove versus interior forest, currently 
prohibits determination of that threshold. Evidence from urban 
populations of related species indicates three-toed sloth species may 
be relatively resilient to life in small forest fragments (Service 
2023, p. 6; Pool et al. 2016, pp. 26-30), but it is not clear whether 
this extends to the pygmy sloth.
    As the nearby coastal regions of the Bocas del Toro, Veraguas, and 
Ngobe-Bugle provinces grow in popularity with local and especially 
foreign tourists, so too has the volume of visits to Escudo and the 
demand for infrastructure there (ZSL 2017, pp. 3, 17). Both Panamanians 
and foreign investors are interested in developing the island and 
nearby region for greater tourism commercialization (Smith 2021, pers. 
comm.; Voirin 2021, pers. comm; Voirin 2015, pp. 706-707). Although 
Panama has a mandatory environmental-impact-assessment process 
(Gonzalez 2008, pp. 320-327), reviews are sometimes diminished by 
demand for development (e.g., Gonzalez 2008, pp. 328-333) and often 
initiated too late in a project's progression to revise plans or 
prevent identified environmental harms (Jordan 2021, pers. comm.). 
Consultations between government environmental authorities and 
developers can be rapid and leave little room for adjustment of project 
plans (Jordan 2021, pers. comm.).
    Coastal development and construction of major roads and ports on 
the nearby mainland has improved and will continue to improve 
accessibility, making the trip to Escudo easier for many more people 
(Smith 2021, pers. comm.; Voirin 2021, pers. comm.; Oberle and 
Rodriguez 2020, entire; Bilbao 2017, unpaginated). While little is 
known of the impacts of increased human presence on the island to pygmy 
sloth behavior and ecology, increased tourism, particularly when 
combined with inadequate regulatory mechanisms and enforcement, is 
likely to lead to direct and indirect impacts on sloth viability 
through up-close encounters, deforestation, habitat degradation, 
increased litter and refuse, as well as the potential to increase the 
introduction of pests, invasive species, and disease.
    Desire for up-close or in-hand photos of pygmy sloths will likely 
increase along with tourist visitation as global popularity of sloths 
and demand for pet and zoo-housed sloths has grown tremendously (Voirin 
2015, p. 706). The risk of sloths being illegally taken and smuggled 
away from Escudo into domestic and international trade for personal and 
commercial purposes is greater as more unregulated visitors reach the 
island (Jordan 2021, pers. comm.; Voirin 2021, pers. comm.). This is 
despite three-toed sloths rarely surviving more than several months in 
captivity and a general lack of knowledge regarding husbandry 
techniques for three-toed sloths (Voirin et al. 2014a, p. 2; Espinoza 
and Cliffe 2013, p. 4; Raines 2005, p. 557).
    While there is currently little legal international trade of the 
species, there are several examples of known trade or attempts to trade 
specimens of pygmy sloth. In 2013, 11 individuals were taken from the 
wild with the intent to export to the United States for zoological 
purposes, but the attempted export was stopped by protesters at the 
Bocas del Toro Airport (Espinoza and Cliffe 2013, p. 4). These 
individual pygmy sloths were soon after returned to Escudo, but at 
least two died after reintroduction to the island (Superina 2022, pers. 
comm.). Additionally, eight wild-sourced specimens of pygmy sloth 
originating from Panama were legally exported from the United States to 
Portugal for scientific purposes in 2015. In 2021, there was at least 
one trade transaction of a specimen from China to the Netherlands, but 
the involved specimen was recorded as a CITES pre-

[[Page 20933]]

Convention specimen, meaning the specimen was acquired (removed from 
the wild or born in a controlled environment) before the date the 
species was first included in the CITES Appendices (July 1, 1975), and 
therefore we presume it to be a non-living specimen.
    In general, Escudo and its surroundings have very limited 
government presence or regulatory enforcement because of the remote 
location and Escudo's semi-autonomous nature as an Indigenous-inhabited 
territory that is administered by the Bocas del Toro province. While 
smaller scale, Indigenous-led pygmy sloth tourism has been less 
disruptive than the more industrial form (Voirin 2021, pers. comm.), 
the permit requirements for tourists to visit the island are not 
enforced (ZSL 2017, pp. 17-18). Small-scale tourist operations are also 
likely to be outcompeted by larger organizations entering the market. 
Although large-scale tourism has not yet reached Escudo as it has in 
the surrounding archipelago, tourism is steadily increasing and tourist 
boats arrive without notice and are reportedly damaging coral reefs and 
sea turtle nesting grounds (Smith 2021, pers. comm.), indicative of at 
least some operators' lack of concern for or knowledge about harm to 
the island's ecology.
    Finally, as sea levels rise due to global climate change, the 
extent of the pygmy sloth's island habitats may be reduced 
(Intergovernmental Panel on Climate Change (IPCC) 2019, pp. 6-13). Any 
loss of habitat area on the already small island could reduce the 
number of sloths supported on Escudo. Anecdotally, erosion has been 
increasing on Escudo (Smith 2021, pers. comm.), although its extent is 
not quantified, and it is not known whether this is due to sea-level 
rise, storms, coastal deforestation, or other human-caused shoreline 
disturbance.
Conservation Efforts and Regulatory Mechanisms
    The Pygmy Sloth Conservation Project, established in 2011 by ZSL's 
EDGE of Existence Program, is employing innovative and integrative 
activities to support pygmy sloth and Escudo conservation (ZSL 2017, 
entire). The project includes repeated population surveys, education of 
Indigenous communities and schoolchildren regarding Escudo ecology and 
the benefits of conservation, and cooperation with the Indigenous 
government and local fishermen's association to develop a community-
based natural-resources-management program (ZSL 2017, pp. 19-27).
    In June 2022, a workshop was held in collaboration with the 
Ministry of Environment and the Ng[auml]be-Bugl[eacute] indigenous 
authorities to develop a management plan for the conservation of the 
pygmy sloth (Smith 2022, pers. comm.). The information generated by 
this pygmy sloth conservation action plan is expected to also serve as 
the basis for a future comprehensive management plan for Escudo, but as 
of the publication of this proposed rule, that plan has not yet been 
developed (Smith 2022, pers. comm.).
    As of 2017, the national Ministry of the Environment could not 
afford to visit Escudo independently (ZSL 2017, p. 18). Consequently, 
there is no evidence available to the Service of enforcement of tourism 
permit requirements or anti-littering and deforestation laws. Escudo is 
designated as a protected area with management shared between the 
national Ministry of the Environment and the local Indigenous council 
(Voirin et al. 2014a, p. 5), but in 2012, the island was classified as 
open to tourism, as well as scientific, entertainment, and cultural 
development, so the benefits of the protected-area designation are 
limited (Voirin 2015, pp. 706-707).
    Pygmy sloths are included in CITES Appendix II, and international 
trade in any specimen of the species requires inter alia a valid CITES 
document that authorizes trade in the specimen to accompany the 
specimen. CITES export permits may only be issued by the exporting 
country's CITES Management Authority after a legal acquisition finding 
is made by the exporting country's CITES Management Authority and a 
non-detriment finding is made by the exporting country's CITES 
Scientific Authority (for additional information about CITES 
requirements, see 50 CFR part 23). On May 5, 2023, CITES Notification 
No. 2023/057 notified all Parties to CITES that Panama has suspended 
the issuance of all exports for specimens harvested from the wild for 
commercial purposes, including the pygmy sloth, until scientific non-
detriment findings are completed (CITES 2023, unpaginated).
Current Condition
    We assess the pygmy sloth's resiliency using two criteria: a 
population-abundance criterion and a forest-extent criterion. We 
incorporate the knowledge that the species has likely always been rare 
by basing the population abundance criterion on detection of a 
population decline in addition to considering absolute abundance, as 
rarer species are at elevated risk of extinction even if the rarity is 
natural (Flather and Sieg 2007, entire; Johnson 1998, entire). The 
forest-extent criterion subsumes the pygmy sloth's requirements for 
shelter, connectivity, and native food plants.
    Considering these two resiliency criteria to account for the 
species' demographic and habitat requirements, we determined thresholds 
for high, medium, and low resiliency for the pygmy sloth. High 
resiliency would indicate a high probability of population viability 
with minimal to no declines in population size. Moderate resiliency 
would indicate the species has experienced possible population 
declines. Low resiliency would indicate low probability of population 
viability with certain population decline.
    While it is difficult to estimate the true size of the population 
due to the challenge of detecting (and therefore counting) pygmy sloths 
(Voirin 2015, p. 705), the most recent estimate of the total pygmy 
sloth population size is 2,000-2,500 individuals, and the population is 
estimated to be declining (Smith et al. 2022, unpaginated). The most 
recently available population trend data from mangrove surveys in 2014-
2017 show no change in encounter rate of sloths, although the 
uncertainty in abundance is large (ZSL 2017, p. 13). All estimates 
indicate an extremely small number for an entire species (Smith et al. 
2022, unpaginated).
    Based on our assessment of deforestation from 2000-2020, only 0.11 
percent of forested area in 2000 (totaling 3.95 km\2\) was deforested 
by 2020 (data from Hansen et al. 2013, unpaginated; Service 2023, pp. 
14-16). This assessment, however, is based on satellite data 
(approximately 30 meters (m) resolution) and does not detect partial 
clearings. While ground-based mapping of deforestation events shows 
partial tree clearing has occurred on Escudo (ZSL 2017, p. 16) and a 
recently published assessment indicates habitat degradation has 
resulted in a continuing decline in the quality of pygmy sloth habitat 
(Smith et al. 2022, unpaginated), our assessment indicates the forest 
extent on Escudo remains mostly intact.
    We assess that the pygmy sloth presently has moderate-to-high 
resiliency, because the best available data indicate that pygmy sloth 
abundance and the extent of habitat available on Escudo have not 
considerably declined, but there remains substantial uncertainty in 
these estimates.
    With no captive individuals and only one wild population located on 
an island less than 5 km\2\ in extent, the

[[Page 20934]]

pygmy sloth naturally has very low redundancy. Although very few large 
cyclones and storms reach Escudo, it is seismically active, and loss of 
the Escudo population would equate to global extinction.
    With respect to representation, the isolation of a small number of 
founder individuals when the pygmy sloth separated from the mainland 
population of brown-throated sloths (likely around 9,000 years ago; 
Anderson and Handley 2001, p. 4) would have created a natural genetic 
bottleneck (a sharp decrease in a population's genetic diversity as a 
result of a reduction in population size; Silva 2013, p. 138). Today, 
genetic variation in the population is low (Silva et al. 2018, p. 
1301), and because the pygmy sloth only inhabits Escudo, the habitats 
it uses have little ecological variation. For these reasons, we 
consider the pygmy sloth's ability to adapt to changing environments, 
and thus its representation, to be naturally low.
Future Scenarios
    Based on our assessment, we concluded that two important potential 
threats to pygmy sloth viability in the future are: (1) increased 
development and tourism around--and visitation to--the island, together 
with the increased likelihood of illegal taking and trade in the 
species, and (2) increased habitat loss and degradation caused by 
deforestation and inundation of Escudo.
    In the SSA report, we forecast the species' status under two 
alternative future scenarios and six climate-change projections 
(encompassing the uncertainty in sea-level-rise trajectories) to 
determine how deforestation, the demand for sloths in the pet and 
tourism market, and the potential for the already small extent of 
Escudo to be further reduced by rising sea level would affect the 
species. Specifically, our scenarios include ``status quo'' and 
``improved conservation capacity'' alternatives to assess the potential 
impacts of growing development and tourism. For each of these two 
scenarios, we assessed six climate-change projections to help encompass 
the uncertainty in sea-level-rise trajectories for the year 2050. This 
is approximately 30 years from this proposed listing and would include 
time for climate change and development to progress, as well as for 
conservation activities affecting Escudo to grow. Based on studies from 
other three-toed sloth species, this 30-year timeframe will include 
around three to five generations of pygmy sloths (Anderson and Handley 
2002, p. 1051).
Tourism and Development
    A comprehensive understanding of the current and future conditions 
of tourism on Escudo is currently lacking due to uncertainty in plans 
for imminent coastal development and the inherent difficulty of 
monitoring and enforcing regulations because of the remote nature of 
the island and lack of funding for enforcement. Observational accounts 
indicate that although large tourism operations are not currently 
reaching Escudo, the amount of tourism arriving to the island is 
increasing, and, if the planned development of the nearby remote 
coastline occurs, tourism, including from large outfitters, will likely 
increase in volume (Jordan 2021, pers. comm.; Smith 2021, pers. comm.; 
Voirin 2021, pers. comm.).
    International tourist visitation to Panama grew by 150 percent 
between 2000 and 2008, and nature-based tourism is an increasing 
portion of Panama's economy (Beaton and Hadzi-Vazkov 2017, pp. 23-29). 
Tourism grew fast in the coastal and island regions of Bocas Del Toro 
province (to which Escudo belongs) from the 1990s onwards, including 
growing accessibility to vast stretches of beach and rainforest. For 
instance, beginning in 2004 and continuing into at least 2017, a major 
road was under construction from Santa Fe to the coastal city of 
Calovebora in northern Veraguas province (Bilbao 2017, unpaginated). 
The road's route is a major new access point to undeveloped areas 
within easy boating distance of Escudo (Bilbao 2017, unpaginated). 
Additionally, developers have for several years been amassing land 
holdings in the regions near Escudo, and they may be planning for the 
resale of lots for future homes and hotels (Jordan 2021, pers. comm).
    As additional people move to and visit the region, the very strong 
demand for sloths taken from the wild for tourists' ``sloth selfies'' 
or for sale into the pet trade (Greenfield 2020, unpaginated) will 
likely impact pygmy sloths (Voirin 2021, pers. comm.; Jordan 2021, 
pers. comm.). For example, other sloth species are illegally collected 
from the wild in Colombia for hands-on tourism or illegal pet trade 
(Gorder 2021, unpaginated; Moreno and Plese 2006, p. 12).
    The General Law on Environment of the Republic of Panama (Article 
23 of Law No. 41 (1998)) requires that public or private projects, 
including tourism developments, be vetted through an environmental-
impact-assessment (EIA) process administered by the national Ministry 
of the Environment (Gonzalez 2008, p. 324; Bethancourt 2000, 
unpaginated). In practice, however, developers often do not file for an 
EIA or do so very late in the project's progress, which makes 
substantive changes to the project challenging (Jordan 2021, pers. 
comm.). Consultations that do take place, particularly in remote 
locations, are frequently cursory (Jordan 2021, pers. comm.).
    By 2050 under the status quo alternative, if the lack of 
environmental law enforcement capacity in the remote Escudo region (ZSL 
2017, p. 18) continues, the limitations of Panama's EIA process are not 
rectified, and the unplanned nature of regional development (Jordan 
2021, pers. comm.) persists, modest to large declines in the species' 
population are likely. These declines are likely due to the stresses of 
increased visitation to Escudo (including up-close encounters), habitat 
degradation, and illegal poaching to meet the demand for the pet and 
zoo trade domestically and internationally.
    If, on the other hand, the ongoing conservation efforts (see 
Conservation Efforts and Regulatory Mechanisms, above) lead to improved 
conservation capacity around Escudo, pygmy sloth population declines 
would be less likely to occur. A future with improved conservation 
capacity would include the regular presence of well-equipped 
conservation officers from the national Ministry of the Environment or 
Indigenous governments or both, and only sustainable, well-regulated 
tourist visits to Escudo with no pygmy sloths captured or disturbed. A 
completed management plan would include enforcement of specific 
limitations on the volume and activities of tourists and others to 
avoid pygmy sloth collection and deforestation. While ongoing work to 
support pygmy sloth conservation (see Conservation Efforts and 
Regulatory Mechanisms, above) indicates this is a possible future 
scenario, given the historical and ongoing challenges of regulation and 
enforcement on Escudo, this outcome is less likely than the status quo 
scenario.
Loss of Habitat
    Given its small island habitat, the pygmy sloth's viability is 
sensitive to the potential for further reduction in the available areas 
on Escudo, for example losses due to sea-level rise and deforestation. 
To assess the impacts of sea-level rise, we used climate models 
forecasting where land presently above water will be lost due to sea-
level rise. We used these data to project the extent of pygmy sloth 
habitat expected to be lost under different climate-change

[[Page 20935]]

scenarios. Specifically, we included six alternative climate 
trajectories defined by the (1) degree of greenhouse-gas emissions 
reduction achieved (three representative concentration pathways (RCPs), 
RCPs 2.6, 4.5, and 8.5) by 2050, and (2) two different rates of 
Antarctic ice-sheet melting, an uncertain but potentially major 
contributor to global sea-level rise (Kulp and Strauss 2018, p. 2; Kopp 
et al. 2017, entire; Kopp et al. 2014, entire).
    The RCPs are Intergovernmental Panel on Climate Change (IPCC) 
scenarios that describe alternative future trajectories of greenhouse 
gas emissions and that are used to drive climate-model projections in 
response to higher or lower future emission rates (IPCC 2014, p. 8). In 
the RCP names, the values 2.6, 4.5, and 8.5 refer to the rate at which 
energy is trapped by Earth's atmosphere in watts per square meter 
(m\2\) at the height of warming for the given scenario; thus, RCP 8.5 
is a scenario indicating faster warming than RCP 4.5. RCP 8.5 is 
considered a ``high-emission business as usual scenario,'' i.e., 
towards the upper end of what might occur without climate-change 
mitigation policy (Riahi et al. 2011, p. 54). RCP 4.5 is based on a 
lower-emissions future in which renewable energy, greater energy 
efficiency, and carbon capture and storage are more widely implemented 
(Thomson et al. 2011, p. 77). RCP 2.6 represents stringent cuts to 
greenhouse gas emissions sufficient to limit warming to 2 degrees 
Celsius ([deg]C) (van Vuuren et al. 2011, entire).
    The extent of Escudo habitat inundated by 2050 ranged from 0.04 
percent (RCP 2.6, no rapid West Antarctic melting) to 0.08 percent (RCP 
8.5, rapid West Antarctic melting; Service 2023, p. 20). Even if we 
assumed for the most pessimistic scenario (0.08 percent of the entire 
island inundated) that the entirety of the inundated habitat was 
concentrated within the 2.5 percent of the island that is mangrove 
forests, only slightly more than 3 percent of the mangroves would be 
inundated. However, although inundation is focused on coastal edges of 
the island and includes some locations on the north coast where 
mangroves grow, part of the inundation will occur outside the 
mangroves, so the 3 percent figure is likely an overestimate. Moreover, 
red mangroves can possibly keep pace with sea-level rise by growing 
taller and accumulating peat beneath their stilt roots (Mckee et al. 
2007, entire; Feller 2021, pers. comm.). The interior forest habitat is 
more extensive than mangroves (ZSL 2017, p. 11) and, when compared to 
estimates for mangrove forests, less interior forest habitat is 
projected to be lost as a result of sea-level rise. Thus, we project 
that loss of habitat due to sea-level rise will be at most 3 percent 
across mangrove and interior forest habitats.
    Deforestation presents a second potential cause of habitat loss and 
degradation. Forecasting future rates of deforestation is difficult due 
to the discrepancies between ground observations and satellite data of 
deforestation, as well as the unknown impact that, if implemented, 
development plans and potential subsequent tourism increases might have 
on deforestation. Under a status quo future, deforestation may continue 
as it occurs now, at low and consistent levels, or it may increase, 
given the interest expressed by some Indigenous people in living on 
Escudo and the expansion of tourism and associated infrastructure 
development on the island. With improved conservation capacity, 
including increased monitoring and enforcement of land use of the 
island, we project that deforestation levels would be low.
Overall Future Resiliency, Redundancy, and Representation
    Regardless of the climate-change scenario, if the conservation 
capacity around Escudo does not improve (i.e., if it remains at the 
status quo), the total resilience of the pygmy sloth is projected to 
decline, likely falling into the moderate-to-low-resiliency category, 
and potentially falling into the low-resiliency category. If 
conservation capacity is improved around Escudo, we project that the 
pygmy sloth's resiliency could improve despite the species' natural 
rarity. However, high uncertainty exists in both current and future 
resiliency due to the limited data available on population abundance, 
rates of deforestation, and effects of tourism and development on the 
species. Additionally, given the historical and current lack of 
regulatory and enforcement capacity, outcomes under the improved-
conservation-capacity scenario, although possible, are less likely than 
those under the status quo scenario.
    Redundancy is not projected to change under any of the future 
scenarios; we expect there to remain only the single Escudo population. 
Representation may remain the same or may decrease if tourists arriving 
at the relatively accessible island edge and beaches stress pygmy 
sloths into retreating into the interior forest and reduce the habitat 
types pygmy sloths use, further limiting the species' adaptive 
potential.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Determination of Pygmy Sloth's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
Status Throughout All of Its Range
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we determined that the future viability of the pygmy sloth 
will be reduced as ongoing and future development on the mainland 
nearest Escudo increases accessibility to the island, likely reducing 
the pygmy sloth's resiliency, which along with its naturally low 
redundancy and representation will likely compromise the security of 
the species' continued existence within the foreseeable future.
    The pygmy sloth is a narrow endemic species with a small population 
and very limited range. Given the pygmy sloth's rarity and low genetic 
diversity, the species has naturally low

[[Page 20936]]

representation and redundancy. While tourism and small-scale timber 
harvest are ongoing in the species' range, the pygmy sloth is not 
currently at risk of extinction because it maintains moderate-to-high 
resiliency with a variety of age classes and evidence of reproduction, 
and while it is naturally restricted to the very small island of 
Escudo, its habitat requirements do not currently appear to be 
limiting. Although the species currently is not at risk of extinction, 
threats to the species are expected to increase in the foreseeable 
future. Ongoing and anticipated development on the nearby mainland will 
facilitate increased access to Escudo, increasing disturbance to pygmy 
sloths through deforestation, up-close interactions, and illegal taking 
and smuggling into domestic and international trade for personal and 
commercial purposes. While there are regulatory mechanisms in place to 
protect against these threats, enforcement in the species' relatively 
remote range is limited and is likely inadequate to reduce the impacts 
of increased tourism and deforestation. The current population of the 
pygmy sloth is estimated to be declining, and the likely increase of 
threats in the foreseeable future will reduce the species' viability to 
a point that it is likely to lack sufficient resiliency, 
representation, and redundancy for its continued existence to be 
secure.
    Thus, after assessing the best available information, we conclude 
that the pygmy sloth is not currently in danger of extinction but is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range due to increased threats from tourism and 
development that will likely lead to habitat loss and degradation 
(Factor A), overutilization in a variety of forms from increasing human 
interactions (Factor B), and the inadequacy of existing regulatory 
mechanisms (Factor D).
Status Throughout a Significant Portion of Its Range
    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. The court in Center for Biological Diversity v. Everson, 
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final 
Policy''; 79 FR 37578, July 1, 2014) that provided if the Service 
determines that a species is threatened throughout all of its range, 
the Service will not analyze whether the species is endangered in a 
significant portion of its range.
    Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for pygmy sloth, we choose to address the 
status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify portions of the range where the species may 
be endangered.
    We evaluated the range of the pygmy sloth to determine if the 
species is in danger of extinction now in any portion of its range. The 
pygmy sloth is a narrow endemic that functions as a single, contiguous 
population and occurs entirely within a 4.3 km\2\ island. Thus, there 
is no biologically meaningful way to break this limited range into 
portions, and the threats that the species faces affect the species 
throughout its entire range. As a result, there are no portions of the 
species' range where the species has a different biological status from 
its rangewide biological status. Therefore, we conclude that there are 
no portions of the species' range that warrant further consideration, 
and the species is not in danger of extinction in any significant 
portion of its range, and we determine that the species is likely to 
become in danger of extinction within the foreseeable future throughout 
all of its range. This does not conflict with the courts' holdings in 
Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 
1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v. 
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017), because, in reaching 
this conclusion, we did not apply the aspects of the Final Policy, 
including the definition of ``significant'' that those court decisions 
held to be invalid.
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the pygmy sloth meets the Act's definition 
of a threatened species. Therefore, we propose to list the pygmy sloth 
as a threatened species in accordance with sections 3(20) and 4(a)(1) 
of the Act.

Available Conservation Measures

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of such 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. Under the Act, a number of steps are 
available to advance the conservation of species listed as endangered 
or threatened species. As explained further below, these conservation 
measures include: (1) recognition, (2) recovery actions, (3) 
requirements for Federal protection, (4) financial assistance for 
conservation programs, and (5) prohibitions against certain activities.
    Recognition through listing results in public awareness, as well as 
in conservation by Federal, State, Tribal, and local agencies, foreign 
governments, private organizations, and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species.
    Section 7 of the Act is titled, ``Interagency Cooperation,'' and it 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat.
    A Federal ``action'' that is subject to the consultation provisions 
of section 7(a)(2) of the Act is defined in our implementing 
regulations at 50 CFR 402.02 as all activities or programs of any kind 
authorized, funded, or carried out, in whole or in part, by Federal

[[Page 20937]]

agencies in the United States or upon the high seas. With respect to 
pygmy sloth, no known actions require consultation under section 
7(a)(2) of the Act. Given the regulatory definition of ``action,'' 
which clarifies that it applies to activities or programs ``in the 
United States or upon the high seas,'' the pygmy sloth is unlikely to 
be the subject of section 7 consultations, because the entire life 
cycle of the species occurs in terrestrial areas outside of the United 
States and the species is unlikely to be affected by U.S. Federal 
actions. Additionally, no critical habitat will be designated for the 
species because, under 50 CFR 424.12(g), we will not designate critical 
habitat within foreign countries or in other areas outside of the 
jurisdiction of the United States.
    Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the 
provision of limited financial assistance for the development and 
management of programs that the Secretary of the Interior determines to 
be necessary or useful for the conservation of endangered or threatened 
species in foreign countries. Sections 8(b) and 8(c) of the Act (16 
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage 
conservation programs for foreign listed species, and to provide 
assistance for such programs, in the form of personnel and the training 
of personnel.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the extent known at the time a 
species is listed, specific activities that will not be considered 
likely to result in violation of section 9 of the Act. To the extent 
possible, activities that will be considered likely to result in 
violation will also be identified in as specific a manner as possible. 
The intent of this policy is to increase public awareness of the effect 
of a proposed listing on proposed and ongoing activities within the 
range of the species proposed for listing. Although most of the 
prohibitions in section 9 of the Act apply to endangered species, 
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act also prohibit the 
violation of any regulation issued under section 4(d) of the Act 
pertaining to any threatened species of fish or wildlife, or threatened 
species of plant, respectively. Section 9(g) additionally makes it 
illegal to attempt to commit, to solicit another to commit, or to cause 
to be committed any act prohibited under Section 9, including 
violations of a 4(d) rule. Section 4(d) of the Act grants the Secretary 
broad discretion to prohibit with respect to any threatened species any 
act prohibited under Section 9(a)(1), in the case of fish or wildlife, 
or section 9(a)(2), in the case of plants. Section 4(d) also directs 
the Secretary to promulgate protective regulations that are necessary 
and advisable for the conservation of threatened species. As a result, 
we interpret our policy to mean that, when we list a species as a 
threatened species, to the extent possible, we identify activities that 
will or will not be considered likely to result in violation of the 
protective regulations under section 4(d) for that species.
    At this time, we are unable to identify specific activities that 
would or would not be considered likely to result in violation of 
section 9 of the Act beyond those included in the descriptions of 
proposed prohibitions and exceptions we would establish by protective 
regulation under section 4(d) of the Act (see II. Proposed Rule Issued 
Under Section 4(d) of the Act, below).
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits for threatened species are 
codified at 50 CFR 17.32, and general Service permitting regulations 
are codified at 50 CFR part 13. With regard to threatened wildlife, a 
permit may be issued for scientific purposes, to enhance the 
propagation or survival of the species, for incidental take in 
connection with otherwise lawful activities, for economic hardship, for 
zoological exhibition, for educational purposes, and for special 
purposes consistent with the purposes of the Act. The statute also 
contains certain exemptions from the prohibitions, which are found in 
sections 9 and 10 of the Act.
    The Service may also register persons subject to the jurisdiction 
of the United States through its captive-bred wildlife (CBW) program if 
certain established requirements are met under the CBW regulations (see 
50 CFR 17.21(g)). Through a CBW registration, the Service may allow a 
registrant to conduct certain otherwise prohibited activities under 
certain circumstances to enhance the propagation or survival of the 
affected species, including take; export or re-import; delivery, 
receipt, carriage, transport, or shipment in interstate or foreign 
commerce in the course of a commercial activity; or sale or offer for 
sale in interstate or foreign commerce. A CBW registration may 
authorize interstate purchase and sale only between entities that both 
hold a registration for the taxon concerned. The CBW program is 
available for species having a natural geographic distribution not 
including any part of the United States and other species that the 
Service Director has determined to be eligible by regulation. The 
individual specimens must have been born in captivity in the United 
States.
    Separate from its proposed listing as a threatened species, as a 
CITES-listed species, all international trade of pygmy sloths by 
persons subject to the jurisdiction of the United States must also 
comply with CITES requirements pursuant to section 9, paragraphs (c) 
and (g), of the Act and to 50 CFR part 23. Applicable wildlife import/
export requirements established under section 9, paragraphs (d), (e), 
and (f), of the Act; the Lacey Act Amendments of 1981 (16 U.S.C. 3371 
et seq.); and 50 CFR part 14 must also be met for pygmy sloth imports 
and exports. Questions regarding whether specific activities with pygmy 
sloths would constitute a violation of section 9 of the Act should be 
directed to the Service's Division of Management Authority 
([email protected]; 703-358-2104).

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this

[[Page 20938]]

standard to develop rules that are appropriate for the conservation of 
a species. For example, courts have upheld, as a valid exercise of 
agency authority, rules developed under section 4(d) that included 
limited prohibitions against takings (see Alsea Valley Alliance v. 
Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental 
Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this proposed 4(d) rule would promote 
conservation of the pygmy sloth by ensuring that activities undertaken 
with the species by any person under the jurisdiction of the United 
States are also supportive of the conservation efforts undertaken for 
the species in Panama, as well as under the CITES Appendix-II listing. 
The provisions of this proposed rule are one of many tools that we 
would use to promote the conservation of the pygmy sloth. This proposed 
4(d) rule would apply only if and when we make final the listing of the 
pygmy sloth as a threatened species.
    As discussed above under Summary of Biological Status and Threats, 
we have concluded that the pygmy sloth is likely to become in danger of 
extinction within the foreseeable future primarily due to the impacts 
that nearby development and subsequent increased tourism will have on 
the species and its habitat. Under the proposed 4(d) rule, prohibitions 
and provisions that apply to endangered wildlife under section 9(a)(1) 
of the Act would help minimize threats that could cause further 
declines in the species' status.

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the pygmy 
sloth's conservation needs. As discussed previously in Summary of 
Biological Status and Threats, we have concluded that the pygmy sloth 
is likely to become in danger of extinction within the foreseeable 
future primarily due to the impacts that nearby development and 
subsequent increased tourism will have on the species and its habitat. 
Section 4(d) requires the Secretary to issue such regulations as she 
deems necessary and advisable to provide for the conservation of each 
threatened species and authorizes the Secretary to include among those 
protective regulations any of the prohibitions that section 9(a)(1) of 
the Act prescribes for endangered species. We find that, if finalized, 
the protections, prohibitions, and exceptions in this proposed rule as 
a whole satisfy the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the pygmy sloth.
    The protective regulations we are proposing for the pygmy sloth 
incorporate prohibitions from section 9(a)(1) to address the threats to 
the species. The prohibitions of section 9(a)(1) of the Act, and 
implementing regulations codified at 50 CFR 17.21, make it illegal for 
any person subject to the jurisdiction of the United States to commit, 
to attempt to commit, to solicit another to commit or to cause to be 
committed any of the following acts with regard to any endangered 
wildlife, unless they are otherwise authorized or permitted: (1) import 
into, or export from, the United States; (2) take within the United 
States, within the territorial sea of the United States, or on the high 
seas; (3) possess, sell, deliver, carry, transport, or ship, by any 
means whatsoever, any such wildlife that has been taken illegally; (4) 
deliver, receive, carry, transport, or ship in interstate or foreign 
commerce, by any means whatsoever and in the course of commercial 
activity; or (5) sell or offer for sale in interstate or foreign 
commerce. Certain exceptions to these prohibitions apply to employees 
or agents of the Service, the National Marine Fisheries Service, other 
Federal land management agencies, and State conservation agencies. 
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. This 
protective regulation would provide for the conservation of the pygmy 
sloth by including all of these prohibitions because the pygmy sloth is 
at risk of extinction within the foreseeable future and putting these 
prohibitions in place would help to decrease synergistic, negative 
effects from other ongoing or future threats.
    As discussed above under Summary of Biological Status and Threats, 
deforestation, tourism and development around Escudo, and collection 
for tourism, pet, and zoo demand are affecting the status of the pygmy 
sloth. Prohibiting take (which applies to take within the United 
States, within the territorial sea of the United States, or upon the 
high seas) would indirectly contribute to conservation of the species 
in its range country of Panama by helping to prevent attempts to 
captive-breed the species to establish a domestic market for trade of 
pygmy sloths. Collection of the species for tourism, zoo, and pet 
demand poses an ongoing threat to the species due to its limited range 
and small population size. Further regulating import and export to, 
from, and through the United States and foreign commerce by persons 
subject to the jurisdiction of the United States could deter breeding 
and demand for the species and help conserve the species by eliminating 
the United States as a potential market for illegally collected and 
traded pygmy sloths.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act (50 CFR 
17.32).
    There are other standard exceptions to the prohibitions included in 
the proposed 4(d) rule for the pygmy sloth (see Proposed Regulation 
Promulgation, below), and the statute also contains certain exemptions 
from the prohibitions, which are found in sections 9 and 10 of the Act. 
If the species-specific 4(d) rule is finalized as proposed, the import 
exemption for threatened wildlife listed in Appendix II of CITES (50 
CFR 17.8; section 9(c)(2) of the Act) would not apply to this species. 
A threatened species import permit under 50 CFR 17.32 would be required 
for the importation of all specimens of pygmy sloth. Further, as noted 
above, we may also authorize certain activities associated with 
conservation breeding

[[Page 20939]]

under CBW registrations. We recognize that captive breeding of wildlife 
can support conservation, for example by producing animals that could 
be used for reintroductions. We are not aware of any captive-breeding 
programs of pygmy sloths for this purpose. The proposed 4(d) rule would 
apply to all live pygmy sloths and dead pygmy sloth parts and products 
and supports conservation management efforts for pygmy sloths in the 
wild in Panama.

Required Determinations

Clarity of the Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.) need not be prepared 
in connection with listing a species as an endangered or threatened 
species under the Endangered Species Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Branch of Delisting and Foreign Species (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Branch 
of Delisting and Foreign Species.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by adding an entry for ``Sloth, pygmy three-toed'' 
in alphabetical order under MAMMALS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name               Scientific name        Where listed         Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sloth, pygmy three-toed..........  Bradypus pygmaeus..  Wherever found.....  T               [Federal Register
                                                                                              citation when
                                                                                              published as a
                                                                                              final rule]; 50
                                                                                              CFR 17.40(v).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.40 by adding paragraph (v) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (v) Pygmy three-toed sloth (Bradypus pygmaeus).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the pygmy three-toed sloth. Except as 
provided under paragraph (v)(2) of this section and Sec. Sec.  17.4 and 
17.5, it is unlawful for any person subject to the jurisdiction of the 
United States to commit, to attempt to commit, to solicit another to 
commit, or cause to be committed, any of the following acts in regard 
to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (iv) Conduct activities as authorized by a captive-bred wildlife 
registration under Sec.  17.21(g) for endangered wildlife.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-05724 Filed 3-25-24; 8:45 am]
BILLING CODE 4333-15-P